SB1070 Update: More on SB1070 in the schools

by David Safier

Before I quote Ed Supe Tom Horne, it's important to remember he's a Harvard educated lawyer, and chances are he's read SB1070. That makes this quote, talking about students and SB1070, somewhere between a purposeful misstatement and a lie.

“If they don’t commit a crime, [police officers] won’t be asking them. If a student commits a crime, it’s always been the case that they could inquire about their legal residence,” said Arizona Superintendent of Education Tom Horne.

Horne knows full well that a "lawful stop, detention or arrest" can happen even when someone doesn't commit a crime, and all it takes is a "lawful stop, detention or arrest" for an officer to be required to ask for proof of immigration status if the officer has "reasonable suspicion" the person isn't in the country legally.

The most obvious example is, if someone is a suspect in a crime, that can lead to a "Show me your papers" situation even if the person is completely innocent. If there have been a string of locker thefts at school, a police officer might call in a number of suspects, some of whom have done nothing wrong. But if any of the innocent suspects are brown and speak with an accent, and especially if their clothes are a bit raggedy, the officer will have "reasonable suspicion" that student is here illegally.

I'm going to label Horne's statement, "If they don't commit a crime, they won't be asking them" a lie. A flat out lie.

When Horne says "it’s always been the case that they could inquire about their legal
residence," that's a purposeful clouding of the issue. Yes, officers "could" inquire about legal residence before. But under SB1070, they're obligated to to inquire.

The difference between an officer exercising discretion and officer being mandated to check immigration status when there is a "reasonable suspicion" someone is here illegally is huge.

I would imagine most officers assigned to schools are more interested in keeping order by establishing a relationship with the students and taking care of serious problems than in busting kids for their immigration status. SB1070 will make students — even citizens and non-citizens who are here legally — consider the officer an enemy, which will mean his/her ability to get student cooperation will be stifled. And officers will be forced to put the lives of some students and their families in jeopardy simply because the families decided their children should go to school. [Clarification: By "put their lives in jeopardy," I don't mean in the life-or-death sense. I mean that sending a child to school can result in arrest and deportation for the child and/or the family. Sorry if there was any confusion.]

Under SB1070, an officer is an officer is an officer and "reasonable suspicion" is "reasonable suspicion" — in a school, in the mall, on a sidewalk or on the highways. It makes no difference.

The learning environment in a school will be seriously damaged if students with brown skin and Hispanic facial characteristics know they always have a extra cloud of suspicion hanging over their heads thanks to SB1070.

0 responses to “SB1070 Update: More on SB1070 in the schools

  1. Wow. Next it will be the DUI road blocks that are profiling everyone who is out after a certain hour during holiday season. Must be drunk eh? We’re stopped, asked for ID and asked if we have been drinking. Ever wonder how we find other criminals in America?

  2. Ben,

    My question to you is have you ever been profiled because of the color of your skin? I am an American Citizen, but my roots are proudly from Mexico, and I can say that I have been racially profiled because of the color of my skin. Even though they say the officers will not racially profile, it is bound to happen. I respect your opinion, but this new law proposal will affect the Hispanics whether or not they have the correct documentation to live in this Country. It is sad to see that this country is moving backward instead of forward with concerns of civil rights.

  3. David Safier

    Excellent, and accurate, resolution, Ben. (I said I’d give you the last word, and since I’m not adding to the discussion, I figure I’m keeping my word.)

  4. I’ve read Chin et al’s law review, but haven’t had opportunity to link it yet. As I recall that, too, claimed that being Hispanic can only be part of “reasonable suspicion” and cannot be the entirety of said suspicion.

    Chin et al are very clear about what they mean when they say “racial profiling”. And AFAIK given their definition they’re probably correct. But their usage is at odds with the common-language usage of “racial profiling”. Tell Joe Average “Racial Profiling” and he thinks “driving while black”–being stopped or in this case being detained for a prolonged period due to ethnic appearance alone.

    To some extent we’re probably talking past each other–that divide between leftists and non-leftists again. We agree that the law will probably, in its application, lead to abuses, that it is unconstitutional, and that, all that aside, it’s bad policy.

  5. David, your points are very well taken, especially because the allows citizens to sue if they feel that any law enforcement agency is not doing their best to enforce the law. That is going to cause those on the front lines to be vigilant to the point of zealotry. I also appreciate the strong case you make about the effect the law will have on school resource officers and others who are reliant on the relationships they establish with students on any campus in order to do their jobs effectively.

  6. I am very much satisfied with your wordings Mr. Ben Kalafut.
    The way you have expressed it is quite good.
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  7. David Safier

    You and I are trying to parse a law that constitutional scholars say will remain murky until some of its provisions are tested in court — if it becomes law.

    But I think you’ve got some things wrong. It’s true, an officer can’t stop someone based on Hispanic appearance. But once a stop or detention is made, both Arizona and U.S. Supreme Courts say Hispanic appearance can be part of “reasonable suspicion” someone is here illegally. That says to me, every time a Hispanic is in a “stop, detention or arrest” situation with a police officer, there is a presumption the person might be illegal. And the officer can’t simply wave that presumption aside, because the law says “reasonable suspicion” must lead to asking for verification of legal status. Most probably, “He looked Hispanic, so I asked for his papers” won’t stand up. But the law creates a mandatory standard for scrutinizing Hispanics during a stop which doesn’t apply to Anglos.

    I’ll let you have the last word on this if you want it, Ben. However, I recommend you read the 35 page analysis of SB1070 by Chin and others, which says racial profiling will be a probable, maybe inevitable outcome of SB1070 enforcement.

  8. I think you’re missing the point of my remark: ethnicity doesn’t seem rise to the level of reasonable suspicion here.

    I’ll just quote directly from the AACJ brief:

    “In Arizona specifically, reliance on race, language, and dress as the basis for reasonable suspicion used to justify a seizure all but guarantees a constitutional violation.

    In a 1985 class action against the INS for engaging in a pattern of unlawful stops to interrogate persons of Hispanic appearance, the Ninth Circuit Court of Appeals held that Hispanic appearance and presence in an area where illegal aliens travel is not enough to justify a stop. Nicacio, 797 F.2d at 703. In that case, the government also used the manner of dress as a factor in the reasonable suspicion analysis. However, the Court rejected that factor, noting that such “characteristics were shared by citizens and legal aliens in the area, as well as illegals. As the district court found, the appearance and dress factors relied upon by the agents ‘are a function of the individual’s socioeconomic status.’” Id. at 704….”

    As though there aren’t enough problems with SB 1070–see the ACLU’s lawsuit plus the several amicus briefs filed to support it–there seems to be no “reasonable suspicion” short of finding people hiding in the trunk or being told by someone “yeah, I don’t have a visa and am not otherwise here legally.” So if the motion for an injunction isn’t granted and the law does take effect, the first person stopped and detained for an extended period of time is going to have his day ruined, but is also going to “win the lotto” in court, because the officer is who thinks he has “reasonable suspicion” probably does not. And as the AACJ noted, he certainly doesn’t have probable cause to prolong a detention, and no state law can reduce the standard for prolonged detention from probable cause to reasonable suspicion.

    We can agree that ethnic-based suspicion is damaging to individuals and not good for society, either. But I’m missing where SB 1070 authorizes this. It doesn’t change standards of reasonable suspicion, which AFAIK are judicial and established by case law.

  9. David Safier

    Soldier’s mom: Thanks for the correction. What you say might add further to the kind of profile officers follow. “Don’t be fooled by the person speaking unaccented English. Some illegals have been in the country since they were babies.”

    That means even Hispanics who speak “the King’s English” could be suspect.

  10. soldier´s mom

    David one problem…lots of kids who are illegal don´t speak with accented Spanish..some don´t speak in a foreign language at all. For instance Balderas…the Harvard student. Have you listened to him on You tube? The guy doesn´t speak Spanish either, yet he is an illegal immigrant from Mexico..or he was until they granted him a DED.

  11. David Safier

    Ben, here’s the deal as I see it. If an officer must check papers during a stop, detention or arrest if there is reasonable suspicion the person is here illegally, the officer will tend to go through a mental check list. Two kids are called in. The white kid is immediately off the “reasonably suspicious” list in terms of being in the country illegally. The Hispanic kid is on it. If the Hispanic kid speaks reasonably unaccented English and has nice clothes, the officer may make a judgement call and cross the kid off the list. If the kid’s English is accented and the clothes are raggedy, it’s getting pretty close to time to ask for papers, especially if the kid looks nervous or acts evasive.

    If there isn’t a mandate to check papers with reasonable suspicion, the officer can just forget about that stuff until, maybe, a reason arises all by itself. But with the mandate there, and with the possibility of lawsuits for lack of enforcement — not of the officer but of the police force or the city — the imperative is increased.

    This is a situation where every officer is going to be racially profiling all the time — not because they’re racist, but because that’s what they’re supposed to do. Hispanics will feel they’re guilty until proven innocent, while whites with more-or-less identical stats will have no intrinsic guilt attached to them.

    By me, that’s moving back to the Bad Old Days, or increasing the Bad Modern Arpaio-style Days, of second class citizenship where there’s automatically something suspicious about you because of the color of your skin. That’s psychologically damaging to the person who is considered a lesser member of society than someone else, and it’s damaging to the society in general.

  12. It’s not certain that brown skin and ragged clothes would rise to the level of reasonable suspicion. That claim always seemed like “crying wolf”.

    Have a look at the Arizona Attorneys for Criminal Justice brief where reasonable suspicion in this context is discussed. They argue that the bill mandates 4th Amendment violations by prolonging stops to the point where the “probable cause” standard should apply and manufacturing cause.